In the latest of its string of opinion letters addressing issues under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), the U.S. Department of Labor (DOL) recently issued three new opinions that affect family leave, overtime pay, and employee classification. Opinion letters are official, written pronouncements by the DOL’s Wage and Hour Division (WHD) regarding how employment law applies in the specific circumstances raised by the individual or entity that requested the letter.
In FMLA2019-2-A, the Department responded to an inquiry as to whether the FMLA covered an employee’s attendance at a Committee on Special Education (CSE) meeting to discuss her child’s Individualized Education Program (IEP).
Under the FMLA, an employee may use his or her family leave intermittently or on a reduced schedule when medically necessary to attend to a family member’s “serious health condition” as certified by a health care provider, which was the case for the child in question. The Department concluded that the parent’s attendance at such meetings constituted “care for a family member … with a serious health condition” as defined in § 825.100(a) of the Act, which includes making “arrangements for changes in care.” Thus, the FMLA covered the parent’s attendance.
FLSA2019-11 addresses the question of whether a public agency employee who works for both the agency’s fire department and its police department is entitled to any overtime pay “irrespective of the number of hours worked in either position, or cumulatively, provided the hours comply with the 29 U.S.C. § 207(k) exemption.”
The exemption in question provides that “[n]o public agency shall be deemed to have violated subsection (a) [requiring the payment of overtime compensation] with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities” if the employee’s hours remain within specified limits. The letter discusses how employers are to calculate hours and whether overtime pay is required under two different scenarios depending on how much time the employee spends in fire protection activities as opposed to law enforcement.
In FLSA 2012-12, the Department addressed whether volunteer Reserve Deputies who perform paid security work for third parties maintain their status as volunteers or are instead employees under the FLSA.
The opinion concludes that so long as they are not coerced into volunteering and are not compensated for their volunteer work, the Reserve Deputies’ “access to potential external employment opportunities from private third parties does not change the Reserve Deputies’ volunteer status.”
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